European Parliament Reports on Property Rights for Couples

byGilles CunibertionSeptember 10, 2013

On 21 August 2013, the Committee on Legal Affairs of the European Parliament issued its Report on the proposal for a Council regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (COM(2011)0126 – C7-0093/2011 – 2011/0059(CNS)).

The procedure file of the proposal is available here. The rapporteur was Alexandra Thein.

On the same day, the same Committee also released another report: Report on the proposal for a Council regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships (COM(2011)0127 – C7-0094/2011 – 2011/0060(CNS)).

The procedure file of the proposal is available here. The rapporteur was again Alexandra Thein.

According to the final draft agenda of the Parliament, a joint debate took place yesterday on the property rights for couples in the EU, namely on the two above-mentioned reports. The final draft agenda is available here.

With due respect for the considerable efforts made by the rapporteur and the other EP members, there are two points in the revised draft referring to general principles of PIL which do not appear fully convincing. First of all, the reformulation of the Commission’s proposal for overriding mandatory provisions is not made clearer by the proposed amendment 69. Whereas modern conflicts doctrine and the existing EU conflicts regulations clearly distinguish between a special connection devised for internationally mandatory rules (“Eingriffsnormen”) on the one hand (see Articles 9 Rome , 16 Rome II), and a primarily “negative” function of public policy on the other (cf. Articles 21 Rome I, 26 Rome II), Amendment 69 mixes the two concepts by describing overriding mandatory provisions as “provisions the disregard for which would be manifestly incompatible with the public policy (ordre public) of the Member State concerned”. This brings us back to the notion of a “positive” public policy clause that has a venerable tradition in the romanic legal family, but which is not supported by the more differentiated EU legislation so far. Moreover, it begs the question why such a provision should be necessary if there is already a general public policy clause in Art. 23.
Apart from that, it is quite surprising that, in spite of the ambition to ensure coherence with the Regulation on successions, renvoi (Article 24) remains — contrary to Article 34 of the Successions Regulation — totally excluded, even in relations with third states, which is merely justified by a reference to the Rome I Regulation (Amendment 71). Why this should be so (coherence with Rome III, perhaps?) remains a mystery.
Is it really necessary to reinvent the wheel every time that another EU Regulation on the conflict of laws is prepared? Or do we need a Rome-0-Regulation, after all? See http://conflictoflaws.net/2013/do-we-need-a-rome-0-regulation/